Dean Foods Company 18,700,327 Shares Common Stock, par value, $0.01 per share Underwriting Agreement
▇▇▇▇ Foods Company
18,700,327 Shares
Common Stock, par value, $0.01 per share
February 29, 2008
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇ Foods Company, a corporation organized under the laws of the State of Delaware (the
“Company”), proposes to sell 18,700,327 shares (the “Stock”) of the Company’s common stock, par
value, $0.01 per share (the “Common Stock”) to ▇▇▇▇▇▇ Brothers Inc. (the “Underwriter”) pursuant to
this agreement. This is to confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriter. Any reference herein to the Registration Statement, the Base Prospectus
or the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Base Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 20 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, the Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement (as defined
in Rule 405) (File number 333-149439) on Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the Stock. No notice of objection of
the Commission to the use of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been initiated or
threatened by the Commission. Such Registration Statement, including any amendments thereto
filed prior to the Applicable Time, became
effective upon filing. The Company will file with the Commission the Prospectus
relating to the Stock in accordance with Rule 424(b). As filed, the Prospectus shall
contain all information required by the Act and the rules thereunder, and, except to the
extent the Underwriter shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Applicable Time or, to the extent not
completed at the Applicable Time, shall contain only such specific additional information
and other changes (beyond that contained in the Base Prospectus) as the Company has advised
you, prior to the Applicable Time, will be included or made therein. The Registration
Statement, at the Applicable Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable requirements
of the Act, the Exchange Act and the respective rules thereunder; on each Effective Date and
at the Applicable Time, the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together with
any supplement thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to the information contained in
or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the Company by or
on behalf the Underwriter specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), it being understood and agreed that the only such
information furnished by or on behalf of the Underwriter consists of the information
described as such in Section 8 hereof.
(c) The Disclosure Package does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of the Underwriter consists of the information described as such
in Section 8 hereof.
(d) The documents incorporated by reference in the Disclosure Package, the Prospectus
and the Registration Statement, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable. Any further documents so filed and incorporated
by reference in the Disclosure Package, the Prospectus and the Registration Statement or any
further amendment or supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the Exchange Act, as
applicable.
(e) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Stock in reliance on the exemption in Rule 163,
and (iv) at the Applicable Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405.
(f) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Stock and (ii) as of the Applicable Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act on the date of first use, and the Company
has complied with any filing requirements applicable to such Issuer Free Writing Prospectus
under the Securities Act. The Company has not made any offer relating to the Stock that
would constitute an Issuer Free Writing Prospectus without the prior written consent of the
Underwriter. The Company has retained in accordance with the requirements of the Securities
Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the
Securities Act. Each Issuer Free Writing Prospectus, when considered together with the
Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(h) Each of the Company and its subsidiaries (as defined in Section 20) has been duly
organized and is validly existing as a corporation (or such other form of legal entity as
its name and organizational documents may indicate) in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate (or other) power and
authority to own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Prospectus, and, except where it
would not have a Material Adverse Effect, is duly qualified to do business as a foreign
corporation (or such other form of legal entity as its name and organizational documents may
indicate) and is in good standing under the laws of each jurisdiction which requires such
qualification.
(i) All the outstanding shares of capital stock or other ownership interests of each
subsidiary of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable, and, except as otherwise set forth in the Disclosure
Package and the Prospectus, all outstanding shares of capital stock or other ownership
interests of such subsidiaries are owned by the Company either directly or through
wholly-owned subsidiaries free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances, except where such security interests,
claims, liens or encumbrances would not have a Material Adverse Effect.
(j) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
(l) The shares of the Stock to be issued and sold by the Company to the Underwriter
hereunder have been duly authorized and, upon payment and delivery in accordance with this
Agreement, will be validly issued, fully paid and non-assessable, will conform to the
description thereof contained in the Base Prospectus, will be issued in compliance with
federal and state securities laws and will be free of statutory and contractual preemptive
rights, rights of first refusal and similar rights.
(m) The statements set forth in the Disclosure Package and the Prospectus under the
caption “Description of Capital Stock” are accurate and fair in all material respects.
(n) Neither the Company nor any subsidiary is, or, after giving effect to the offering
and sale of the Stock and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(o) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and the Exchange Act and such as may
be required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Stock by the Underwriter in the manner contemplated herein and in the
Disclosure Package and the Prospectus.
(p) Neither the offer, issue or sale of the Stock nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation of, or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to (i) the
charter or by-laws or similar organizational documents of the Company or any of its
subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or bound or to which
its or their property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except, with respect to (ii) and (iii)
above, where such conflict, breach, violation or imposition would not, individually or in
the aggregate, result in a Material Adverse Effect.
(q) No holder of securities of the Company has rights to the registration of such
securities under the Registration Statement.
(r) The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the Base Prospectus, the
Prospectus and the Registration Statement present fairly, in all material respects, the
consolidated financial condition, results of operations and cash flows of the Company and
its consolidated subsidiaries as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
(s) Since the date of the most recent financial statements included or incorporated by
reference in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse change, or any development involving a prospective material adverse change,
in the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business or otherwise, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(t) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its property is pending or, to
the best knowledge of the Company, threatened that (i) could reasonably be expected to have
a material adverse effect on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(u) Each of the Company and its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(v) Neither the Company nor any of its subsidiaries is in violation or default of
(i) any provision of its charter or bylaws or similar organizational documents, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or
such subsidiary or any of its properties, as applicable, except, with respect to
(ii) and (iii) above, for such violations and defaults that would not, individually or
in the aggregate, result in a Material Adverse Effect.
(w) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules included or incorporated by
reference in the Base Prospectus and the Prospectus, are independent public accountants with
respect to the Company and its consolidated subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder.
(x) The statistical and market-related data included under the captions included or
incorporated by reference in the Disclosure Package and the Prospectus are based on or
derived from sources that the Company believes to be reliable and accurate in all material
respects.
(y) Each of the Company and its subsidiaries (i) has filed all foreign, federal, state
and local tax returns that are required to be filed or has requested extensions thereof,
except where the failure so to file would not have a Material Adverse Effect, and (ii) has
paid all taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent they are due and payable, except where any such tax, assessment,
fine or penalty is currently being contested in good faith or would not have a Material
Adverse Effect, and except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(z) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Stock.
(aa) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent, and neither the Company nor any of its
subsidiaries is aware of any existing or imminent labor disturbance by the employees of any
of its or any of its subsidiaries’ principal suppliers, contractors or customers, that could
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
(bb) The Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in
which they are engaged.
(cc) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock or other ownership interest, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s
property or assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(dd) The Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither the Company nor
any subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(ee) The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The
Company and its subsidiaries’ internal controls over financial reporting are effective, and,
except as disclosed in the Disclosure Package and the Prospectus, or in any document
incorporated by reference therein, since the end of the Company’s most recent audited fiscal
year, there has been (i) no material weakness in the Company’s and its subsidiaries’
internal controls over financial reporting (whether or not remediated) and (ii) no change
in the Company’s and its subsidiaries’ internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, such internal controls.
(ff) The Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective at the reasonable assurance level.
(gg) There is and has been no failure on the part of the Company or any of its
directors or executive officers in their capacities as such, to comply in all material
respects with any applicable provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(hh) Except as set forth in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto), the Company and each of its subsidiaries are (i) in compliance in all
material respects with any and all applicable laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (iii) have not received
notice of any actual or potential liability under any Environmental Law, except where such
non-compliance with Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the aggregate, have a Material
Adverse Effect. Except as set forth in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto), neither the Company nor any
of its subsidiaries has been named as a “potentially responsible party” under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(ii) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated costs and
liabilities. On the basis of such review, the Company and its subsidiaries have reasonably
concluded that such associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
(jj) The minimum funding standard under Section 302 of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published interpretations
thereunder (“ERISA”), has been satisfied by each “pension plan” (as defined in Section 3(2)
of ERISA) which has been established or maintained by the Company and/or one or more of its
subsidiaries, and the trust forming part of each such plan which is intended to be qualified
under Section 401 of the Code is so qualified; each of the Company and its subsidiaries has
fulfilled its obligations, if any, under Section 515 of ERISA; neither the Company nor any
of its subsidiaries maintains or is required to contribute to a “welfare plan” (as defined
in Section 3(1) of ERISA) which provides retiree or other post-employment welfare benefits
or insurance coverage (other than “continuation coverage” (as defined in Section 602 of
ERISA)); each pension plan and welfare plan established or maintained by the Company and/or
one or more of its subsidiaries is in compliance in all material respects with the currently
applicable provisions of ERISA; and neither the Company nor any of its subsidiaries has
incurred or could reasonably be expected to incur any withdrawal liability under Section
4201 of ERISA, any liability under Section 4062, 4063, or 4064 of ERISA, or any other
liability under Title IV of ERISA.
(kk) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the FCPA, including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA, and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(ll) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(mm) Neither the Company nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC.
(nn) Except as would not, individually or in the aggregate, have a Material Adverse
Effect, the Company and its subsidiaries own, possess, license or have other rights to use,
on reasonable terms, all patents, patent applications, trade and service marks, trade and
service ▇▇▇▇ registrations, trade names, copyrights, licenses, inventions, trade secrets,
technology, know-how and other intellectual property necessary for the conduct of their
respective businesses as now conducted or as proposed in the Prospectus to be conducted.
Neither the Company nor any of its subsidiaries has received any notice of any claim of
infringement of or conflict with any such rights of others that if determined adversely to
the Company or such subsidiary, would, individually or in the aggregate, have a Material
Adverse Effect.
(oo) Neither the Company nor any subsidiary has taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Stock.
(pp) The Stock has been approved for listing, subject to official notice of issuance,
on the New York Stock Exchange.
Any certificate signed by any officer of the Company and delivered to the Underwriter or
counsel for the Underwriter in connection with the offering of the Stock shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell 18,700,327 shares of
the Stock to the Underwriter, and the Underwriter agrees to purchase 18,700,327 shares of the Stock
from the Company.
The price of the Stock purchased by the Underwriter shall be $21.39 per share.
The Company shall not be obligated to deliver any of the Stock to be delivered on the Closing
Date, except upon payment for all such Stock to be purchased on the Closing Date as provided
herein.
3. Delivery and Payment. Delivery of and payment for the Stock shall be made at 10:00
A.M., New York City time, at the offices of Sidley Austin LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Underwriter and the Company
(such date and time of delivery and payment for the Stock being herein called the “Closing Date”).
Delivery of the Stock shall be made to the Underwriter against payment by the Underwriter of the
purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the Stock shall be made through the
facilities of The Depository Trust Company unless the Underwriter shall otherwise instruct.
4. Offering by the Underwriter. It is understood that the Underwriter proposes to
offer the Stock for sale to the public as set forth in the Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Stock, the Company will not file
any amendment of the Registration Statement or supplement (including the Prospectus or any
preliminary prospectus) to the Base Prospectus unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed amendment or supplement
to which you reasonably object. The Company and will cause the Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by the Underwriter with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Underwriter of such timely filing.
The Company agrees to pay the fees required by the Commission relating to the Stock within
the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r). The Company will promptly advise the Underwriter
(i) when the Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering
of the Stock, any amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Prospectus or for any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any proceeding for that purpose or
pursuant to Section 8A of the Securities Act, (v) of the receipt by the Company of any
notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and
(vi) of the receipt by the Company of any notification with respect to the suspension of the
qualification of the Stock for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose. The Company will use its best efforts to prevent the
issuance of any such order or the occurrence of any such
suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of
such order or relief from such occurrence or objection, including, if necessary, by filing
an amendment to the Registration Statement or a new registration statement and using its
best efforts to have such amendment or new registration statement declared effective as soon
as practicable.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Disclosure Package would include any untrue statement
of a material fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made at such time not
misleading, the Company will (i) notify promptly the Underwriter so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply any amendment
or supplement to you in such quantities as you may reasonably request.
(c) If, at any time when the Prospectus relating to the Stock is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder, including in
connection with use or delivery of the Prospectus, the Company promptly will (i) notify the
Underwriter of such event, (ii) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration
statement which will correct such statement or omission or effect such compliance, (iii) use
its best efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any disruption in use
of the Prospectus and (iv) supply any supplemented Prospectus to you in such quantities as
you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security
holders and to the Underwriter an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the Underwriter and counsel for the Underwriter,
without charge, signed copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus by the Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Underwriter may reasonably
request. The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Stock for sale
under the laws of such jurisdictions as the Underwriter may reasonably designate, will
maintain such qualifications in effect so long as required for the distribution of the Stock
and will pay any fee of the Financial Industry Regulatory Authority in connection with its
review of the offering; provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those arising out of the
offering or sale of the Stock, in any jurisdiction where it is not now so subject.
(g) The Company agrees that, unless it has obtained or will obtain the prior written
consent of the Underwriter, and the Underwriter agrees with the Company that, unless it has
obtained or will obtain, as the case may be, the prior written consent of the Company, it
has not made and will not make any offer relating to the Stock that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission
or retained by the Company under Rule 433. Any such free writing prospectus consented to by
the Underwriter or the Company is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) they
have complied and will comply, as the case may be, with the requirements of Rules 164 and
433 applicable to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
(h) For a period commencing on the date hereof and ending on the 60th day after the
date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly,
(1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the Stock and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation plans existing on
the date hereof or pursuant to currently outstanding options or rights not issued under one
of those plans, or sell or grant options, rights or warrants with respect to any shares of
Common Stock or securities convertible into or exchangeable for Common Stock (other than the
grant of options pursuant to option plans or other employee compensation plans existing on
the date hereof), (2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3)
file or cause to be filed a registration statement, including any amendments, with respect
to the registration of any shares of Common Stock or securities convertible, exercisable or
exchangeable into Common Stock or any other securities of the Company (other than any
registration statement on Form S-8) or (4) publicly disclose the intention to do any of the
foregoing,
in each case without the prior written consent of the Underwriter, and to cause each
officer of the Company set forth on Schedule II hereto to furnish to the Underwriter, prior
to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the
“Lock-Up Agreements”).
(i) The Company will apply the net proceeds from the sale of the Stock being sold by
the Company as set forth in the Disclosure Package and the Prospectus.
(j) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Stock.
6. Conditions to the Obligations of the Underwriter. The obligations of the
Underwriter to purchase the Stock shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Prospectus, and any supplement thereto, has been filed in the manner and within
the time period required by Rule 424(b); and any other material required to be filed by the
Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; the Company has
paid the fees required by the Commission relating to the Stock within the time required by
Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r); and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the
Closing Date and addressed to the Underwriter, each in form and substance satisfactory to
the Underwriter, to the effect set forth in Exhibit B hereto.
(c) The Underwriter shall have received from Sidley Austin LLP, counsel for the
Underwriter, such opinion or opinions, dated the Closing Date and addressed to the
Underwriter, with respect to the issuance and sale of the Stock, the Registration Statement,
the Disclosure Package, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate of the Company,
signed by the principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Prospectus, the Disclosure Package and any supplements
or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose or pursuant to Section 8A of the Securities Act have been instituted or, to
the Company’s knowledge, threatened;
(iii) the Company has not received any notice of objection of the Commission to
the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and
(iv) since the date of the most recent financial statements included or
incorporated by reference in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or otherwise),
earnings, business, properties or prospects of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business or otherwise, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Underwriter the opinion or opinions of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Company’s General Counsel (or such other in-house legal officer or
officers acceptable to the Underwriter), signed by the General Counsel or such counsel or
counsels, dated the Closing Date and addressed to the Underwriter, to the effect set forth
in Exhibit C hereto.
(f) The Company shall have requested and caused Deloitte & Touche LLP to have furnished
to the Underwriter, at the Execution Time and at the Closing Date, letters, (which may refer
to letters previously delivered to the Underwriter), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the Underwriter,
containing statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain
financial information contained in the Base Prospectus, the Registration Statement and the
Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure
Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary
course of business or otherwise, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter,
so material and adverse as to make it impractical or inadvisable to proceed with the
offering, sale or delivery of the Stock as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement
thereto) and the Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(i) The New York Stock Exchange shall have approved the Stock for listing, subject only
to official notice of issuance.
(j) The Lock-Up Agreements between the Underwriter and the officers of the Company set
forth on Schedule II, delivered to the Underwriter on or before the date of this Agreement,
shall be in full force and effect on the Closing Date.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriter.
7. Reimbursement of Underwriter’s Expenses. If the sale of the Stock provided for
herein is not consummated because any condition to the obligations of the Underwriter set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof other than by reason of a default by the Underwriter,
the Company will reimburse the Underwriter on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by the Underwriter in
connection with the proposed purchase and sale of the Stock.
8. Indemnification and Contribution. (a) The Company agrees to indemnify and
hold harmless the Underwriter, the directors, officers, employees and agents of the
Underwriter and each person who controls the Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement as originally filed or in any amendment thereof, or in the
Base Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter specifically for
inclusion therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company, and its
directors and officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriter, but only with reference to
written information relating to the Underwriter furnished to the Company by or on behalf of
the Underwriter specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have. The Company acknowledges (i) that the last statement set
forth in the last paragraph of the cover page of the Prospectus regarding delivery of the
Securities and (ii) the first and last paragraphs under the caption “Stabilization and Short
Positions” under the heading “Underwriting” in the Prospectus (in each case not including
the Base Prospectus), constitute the only information furnished in writing by or on behalf
of the Underwriter for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) of this Section
unless and to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b) of this
Section 8. The indemnifying party shall be entitled to appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent (1) includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding, and (2) does
not include a statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) In the event that any indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company, on the one hand, and the Underwriter, on the other, agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) (collectively
“Losses”) to which the Company and the Underwriter may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one hand, and
by the Underwriter, on the other, from the offering of the Stock. If the allocation
provided by the immediately preceding sentence is unavailable for any reason, the Company,
on the one hand, and the Underwriter, on the other, shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative fault of the
Company, on the one hand, and of the Underwriter, on the other, in connection with the
statements or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by them, and
benefits received by the Underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the Prospectus.
The Company and the Underwriter agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), (i) in no case shall the Underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable to the Stock
purchased by the Underwriter hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and agent of the
Underwriter shall have the same rights to contribution as the Underwriter, and each person
who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Underwriter, by notice given to the Company prior to delivery of and payment for
the Stock, if at any time prior to such time (i) trading in the Company’s Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or the settlement of such
trading generally shall have been materially disrupted or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or other material
adverse change in financial markets or calamity or crisis the effect of which on financial markets
is such as to make it, in the sole judgment of the Underwriter, impractical or inadvisable to
proceed with the offering, sale or delivery of the Stock as contemplated by the Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriter set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter, the Company, or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Stock. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Underwriter, will be mailed, delivered or telefaxed to ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Registration (Fax:
▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to Section 8(c) to the Director of
Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇); or, if sent to the Company, will be mailed, delivered or
telefaxed to ▇▇▇▇ Foods Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Legal Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
12. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
13. Research Analyst Independence. The Company acknowledges that the Underwriter’s
research analysts and research departments are required to be independent from its investment
banking division and are subject to certain regulations and internal policies, and that the
Underwriter’s research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the
offering that differ from the views of its investment banking division. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriter with respect to any conflict of interest that may arise from the fact that
the views expressed by its independent research analysts and research departments may be different
from or inconsistent with the views or advice communicated to the Company by the Underwriter’s
investment banking division. The Company acknowledges that the Underwriter is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Stock pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriter and any affiliate through which it may be acting, on
the other, (b) the Underwriter is acting as principal and not as an advisor, agent or fiduciary of
the Company, (c) the Company’s engagement of the Underwriter in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity,
and (d) the Underwriter and its affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and that the Underwriter has no obligation
to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether the Underwriter has advised or is currently
advising the Company on related or other matters). The Company agrees that it will waive any claim
that it may have that the Underwriter has rendered advisory services of any nature or respect, or
owes an agency, fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriter, or either of them, with respect
to the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“Act” and “Securities Act” shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Applicable Time” means 6:00 p.m. (New York City time) February 28, 2008.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Applicable Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean as of the Applicable Time, (i) the Base Prospectus,
(ii) any Issuer Free Writing Prospectuses identified in Schedule III hereto, (iii) the
information included on Schedule I hereto, if any, and (iv) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Material Adverse Effect” shall mean a material adverse effect on the condition
(financial or otherwise), earnings, business, properties or prospects of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business or otherwise.
“Prospectus” shall mean the prospectus supplement relating to the Stock that was first
filed pursuant to Rule 424(b) after the Applicable Time, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any prospectus
supplement relating to the Stock that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430A or Rule 430B, as
amended on each Effective Date and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such registration statement as
so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B”, “Rule 433” “Rule 456”, “Rule 457” and “Rule 462 refer to such rules under the
Act.
“Subsidiary” shall have the meaning set forth in Rule 405.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in
Rule 405.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the Underwriter.
| Very truly yours, ▇▇▇▇ FOODS COMPANY |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Vice President and Treasurer | |||
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified above.
hereby confirmed and accepted
as of the date specified above.
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE I
1. [Intentionally Omitted.]
SCHEDULE II
Persons Delivering Lock-up Agreements
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Schedule III
Schedule of Free Writing Prospectuses included in the Disclosure Package
Issuer Free Writing Prospectus dated and filed with the Commission on February 28, 2008.